Law Establishing Electronic Surveillance As A Stand-Alone Sentence (1)

Original Language Title: Loi instaurant la surveillance électronique comme peine autonome (1)

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belgiquelex.be - Carrefour Bank of Legislation

7 FEBRUARY 2014. - Act to establish electronic surveillance as a stand-alone sentence (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Code of Criminal Investigation
Art. 2. Article 594, paragraph 1erthe Criminal Code, which was restored by the Act of 8 August 1997 and last amended by the Act of 21 December 2009, the following amendments are made:
(a) the 4th is reinstated in the following wording:
"4° the decisions condemning a working sentence in accordance with Article 37quinquies of the Criminal Code, except to constitute the preparatory list of jurors in accordance with Article 224, 13° of the Judicial Code; ";
(b) the paragraph is supplemented by a 5°, as follows:
"5° the decisions condemning an electronic surveillance penalty in accordance with Article 37ter of the Criminal Code, except to constitute the preparatory list for the jurors in accordance with Article 224, 13° of the Judicial Code. ".
Art. 3. In section 595, paragraph 1er, of the same Code, restored by the law of 8 August 1997 and last amended by the law of 15 May 2006, the 1st is replaced by the following:
"1° the convictions, decisions or measures listed in Article 594, 1° to 5° ;".
Art. 4. In section 596, paragraph 2, of the same Code, restored by the Act of 8 August 1997 and amended by the Act of 31 July 2009, the words "the decisions referred to in section 594, 4° and 5° and" are inserted between the words "the extract mentions, in addition to the decisions referred to in paragraph 1er, also" and the words "convictions referred to in Article 590, paragraph 1er, 1° and 17°, ".
CHAPTER 3. - Amendments to the Criminal Code
Art. 5. In section 7 of the Criminal Code, the words "In correctional and police matters:
1° imprisonment;
2° the working sentence.
The penalties under 1° and 2° cannot be applied cumulatively." are replaced by the words "In correctional and police matters:
1° imprisonment;
2° the electronic surveillance penalty;
3° the working sentence.
The penalties prescribed in 1° to 3° cannot apply cumulatively.".
Art. 6. In Book I, Chapter II, of the same Code, a section Vter, entitled "From the electronic surveillance penalty".
Art. 7. In section Vter inserted by section 6, an article 37ter is inserted as follows:
"Art. 37ter. § 1er. Where an act is such that it must be punished with a maximum of one year's imprisonment, the judge may sentence, as a principal sentence, an electronic surveillance sentence of a duration equal to the sentence of imprisonment that he would have imposed. The judge provides, within the limits of the penalties provided for the offence and by law according to its referral, a prison sentence that may be applicable in the event of non-performance of the electronic surveillance penalty. For the purpose of fixing the duration of this subsidiary prison sentence, one day of the electronic surveillance penalty imposed corresponds to a day of imprisonment.
The electronic surveillance penalty shall not be imposed for the acts referred to:
- Article 347bis;
- articles 375 to 377;
- Articles 379 to 387, if the acts were committed on minors or by minors;
- articles 393 to 397;
- Article 475.
§ 2. The duration of the electronic surveillance penalty may not be less than one month or more than one year.
The electronic supervisory penalty must be executed within six months of the date on which the judicial decision has been handed down in force.
§ 3. With a view to the application of an electronic surveillance sentence, the Public Prosecutor's Office, the examining magistrate, the investigating courts and the courts of judgment may charge the competent service of the Federal Public Service Justice of the judicial district of the place of residence of the accused, the accused or the convicted person of carrying out a brief information report and/or a social inquiry.
The King sets out the terms of the brief information report and the social inquiry.
These reports and investigations may only contain relevant elements to inform the authority that has sent the application to the competent department of the Federal Justice Public Service on the appropriateness of the measure or sentence.
Any major person with whom the defendant cohabits is heard in his observations in the context of this social investigation. The summary information report or social investigation report is attached to the file in the month of the application.
§ 4. When an electronic surveillance sentence is contemplated by the judge, required by the Public Prosecutor's Office or requested by the accused, the judge shall inform the judge, before the proceedings are closed, of the scope of such a sentence and shall hear it in his observations. The judge may also take into account the interests of potential victims. The judge may only pronounce the electronic surveillance penalty if the accused is present or represented at the hearing and after he has given, either in person or through his counsel, his consent. Any major cohabitant of the defendant who has not been heard in the context of the social investigation, or if no social investigation has been conducted, cannot be heard by the judge in his observations.
§ 5. The judge determines the duration of the electronic surveillance sentence and may give indications as to its concrete modalities. The judge may subject the convicted person to individualized conditions if they are absolutely necessary to limit the risk of recidivism or if they are necessary in the interests of the victim. ".
Art. 8. In the same section Vter, an article 37quater is inserted as follows:
"Art. 37quater. § 1er. As soon as the sentencing of an electronic surveillance sentence has been imposed, the Public Prosecutor's Office shall inform the relevant Federal Justice Public Service department with a view to imposing the sentence. To this end, this service shall contact the convict within seven working days of the information and shall determine the concrete execution of the sentence, after hearing the convict and taking into account his observations.
§ 2. Without prejudice to the application of section 20 of the Police Service Act of 5 August 1992, the Public Prosecutor's Office is responsible for the control of the convicted person. Officials of the competent department of the Federal Justice Public Service control the execution of the electronic surveillance penalty and accompany the convicted person.
§ 3. If the electronic surveillance penalty is not in whole or in part in accordance with the prescribed terms, the Public Service Officer of the Federal Justice Public Service shall promptly inform the Public Prosecution Service. The latter may then decide, after giving the convicted person the opportunity to be heard by the National Electronic Monitoring Centre, to carry out the prison sentence set out in the judicial decision, taking into account the part of the electronic surveillance sentence that has already been executed by the convicted person. In this case, a day of electronic surveillance sentence executed is equivalent to a day of imprisonment.
§ 4. As soon as the sentence is enforced, the convicted person is informed of the possibility of requesting a suspension of the electronic surveillance penalty after serving a third of the sentence. Upon completion of the time, the convicted person may apply to the Public Prosecutor's Office for a written request to obtain the suspension. The convict sends a copy of this written request to the National Electronic Monitoring Centre.
Within fifteen days, the National Electronic Monitoring Centre renders a notice to the Public Prosecutor ' s Office regarding compliance with the program of the concrete content of electronic surveillance and, where applicable, individualized conditions imposed on the convicted person. This notice indicates whether the convicted person committed new offences during the execution of the electronic surveillance sentence. The opinion of the National Electronic Monitoring Centre includes a reasoned proposal to grant or reject the suspension and, where appropriate, reiterates the specific conditions that the Centre considers necessary to impose on the convicted person.
The Public Prosecution Service shall grant the suspension of the electronic surveillance penalty in the event that the convicted person has not committed new offences, in the event that he has complied with the program of the concrete content of electronic surveillance and, where appropriate, the individualized special conditions imposed on him.
When the suspension is granted, the convict shall be subjected to a trial period for the portion of the electronic surveillance sentence that the convict must still serve. In this case, a day of electronic surveillance sentence executed is equivalent to a day of imprisonment. It is subject to the general condition, namely the prohibition of the commission of new offences, as well as, where applicable, the specific conditions imposed on it.
In the event of non-compliance with this general condition and, where applicable, the special conditions imposed on the convicted person, the suspension may be revoked. ".
Art. 9. In Book I, Chapter II, of the same Code, "Section Vbis. Work penalty is renumbered as "Section Vter. Of the working penalty", and articles 37ter, 37quater and 37quinquies are listed in articles 37quinquies, 37exies and 37octies.
Art. 10. Section 58 of the same Code, as amended by the Act of 17 April 2002, is supplemented by a paragraph written as follows:
"When an electronic surveillance sentence is imposed, its duration cannot exceed one year."
Art. 11. In article 59 of the same Code, as amended by the Act of 17 April 2002, the words "electronic surveillance penalties" are inserted between words, "work sentences" and the words "and penalties".
Art. 12. In article 60 of the same Code, last amended by the Act of 17 April 2002, the words "a year of electronic surveillance penalty" are inserted between the words "incarceration" and the words "or three hundred".
Art. 13. In section 85, paragraph 1er, of the same Code, as amended by the Act of 17 April 2002, the words "electronic surveillance penalties" are inserted between the words "sentences of imprisonment," and the words "work sentences".
CHAPTER 4. - Amendment of the Police Service Act of 5 August 1992
Art. 14. In section 20 of the Act of 5 August 1992 on the police function, last amended by the Act of 27 December 2012, the following amendments are made:
1st paragraph 1er is completed by the words:
"and convicts serving an electronic surveillance sentence within the meaning of articles 37ter and 37quater of the Criminal Code."
2° paragraph 2 is supplemented by the words:
"and convicts serving an electronic surveillance sentence within the meaning of articles 37ter and 37quater of the Criminal Code."
CHAPTER 5. - Authorization for coordination
Art. 15. The King is responsible for coordinating other legal texts with the provisions of this Act.
CHAPTER 6. - Entry into force
Art. 16. This Act comes into force on the date fixed by the King.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 7 February 2014.
PHILIPPE
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Note
House of Representatives
(www.lachambre.be)
Documents: 53-1042
Full report: 9 January 2014
Senate (www.senate.be):
Documents: 5-2433.